Chattisgarh High Court
Sameer vs Gauri Dasi And Others on 9 November, 2021
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AFR
HIGH COURT OF CHHATTISGARH, BILASPUR
Judgment Reserved on : 13.09.2021
Judgment Delivered on : 09/11/2021
S.A. No. 397 of 2009
Sameer, S/o. Bhavranjan, aged about 47 years, R/o. Kanchan Nagar, Post
Aragahi, Tahsil and District - Ramanujganj, District - Sarguja (C.G.)
---- Appellant
Versus
1. Gauri Dasi, Wd/o. Late Anand Mandal, aged about 60 years,
2. Thakurshil, S/o. Haripadshil, aged about 45 years,
3. Vijayshil, S/o. Thakurshil, aged about 23 years
All are R/o. Village - Kanchan Nagar, Tahsil - Pal, District - Sarguja
(C.G.).
4. Tahsildar, Pal, District- Surguja (C.G.).
5. The State of Chhattisgarh, Through : Collector, Surguja (C.G.)
---- Respondents
For Appellant : Mr. S.N. Nande & Mr. B.N. Nande,
Advocates
For Respondents/State : Mr. Sameer Uraon, Govt. Advocate
Hon'ble Shri Justice Rajendra Chandra Singh Samant
C A V Order
1. This second appeal has been filed being aggrieved by the impugned
judgment and decree dated 25.08.2009, passed by the Additional
District Judge (F.T.C.), passed in Civil Appeal No.13-A/2006 by which,
the appeal was allowed and the judgment and decree of the trial Court
dated 28.03.2006, in Civil Suit No.2-A/1992 was set-aside.
2. The second appeal was admitted for hearing on the following substantial
questions of law :-
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"1. Whether after conferring bhoomiswami rights on the
appellant, the lease granted to the plaintiff/appellant could
have been cancelled by the Additional Collector?'
2. Whether lease granted to a beneficiary under the
rehabilitation scheme by the rehabilitation officer can be
cancelled by Additional Collector acting as revenue officer
and not as an officer under the rehabilitation scheme?"
3. Facts
of the case are this that the appellant came to India as refugee
from East Pakistan and was rehabilitated in village - Kanchan Nagar,
District - Surguja and he was granted lease of government land bearing
Kh. No.37/2, 37/3, 44 and 52 measuring area 0.544, 0.647, 0.090, 0.580
hectares in total 1.861 hectares in the year 1964-65. The lease was
granted by the Rehabilitation Officer, since then the appellant was
earning his livelihood from the land granted to him on lease. The
Additional Collector, Sarguja at Ambikapur under respondent No.1,
initiated a Revenue Case No.73A-19/89-90 and by order dated
09.10.1991 has cancelled the lease granted in favour of the appellant.
The appellant then filed a civil suit No.2-A/1992 against the respondents
pleading that the appellant had acquired title over the suit land and that
the lease was granted to the appellant by Rehabilitation Officer. That the
Collector had no authority to cancel the lease granted to the appellant.
Prayer was made for relief of declaration of title over the suit property
and permanent injunction along with possession in case the appellant is
dispossessed in between.
4. The learned trial Court by the judgment and decree dated 28.03.2006
decreed the suit in favour of the appellant and granted relief of
declaration and permanent injunction. Respondent No.1 preferred Civil
Appeal No.13A/06, which was allowed and the judgment and decree of
the trial Court was set-aside.
5. It is submitted by the learned counsel for the appellant that the appellant
was rehabilitated under the scheme of Government of India, under
which, he was granted lease of the suit land. The lease that was
granted by the District Rehabilitation Officer could not have been
cancelled by the Collector. Name of the appellant was recorded in the
records of rights, which is Ex.P-11 present in the record of the trial
Court. It is submitted that there is specific provision provided under
Section 182 of the C.G. Land Revenue Code, 1959, which was not
followed by the respondent No.5, in passing the order cancelling the
lease in favour of the appellant. It is also submitted that Bhumiswami
rights are also vested with the appellant. Clause-14 of the lease
agreement (Ex.P-20) provides that grant of bhumiswami rights shall be
considered after completion of five years. Subsequent to which lease
granted may be terminated or may be extended. Since from the date of
grant of lease neither there was any order for termination of the lease or
extension of lease, therefore, it can be deemed that Bhumiswami rights
have been vested with the appellant. Rights once vested can not be
divested, hence, the impugned judgment and the decree of the
appellant Court is not sustainable, therefore, it is prayed that the second
appeal be allowed.
6. The private respondents are not represented.
7. The State counsel appearing for respondents No.4 and 5 opposes the
submissions and submits that no error has been committed by the
appellate Court, in passing the impugned judgment and decree,
therefore, there is no ground for interference present in the impugned
judgment and decree, therefore, the second appeal be dismissed.
8. I have heard the learned counsel for both the parties and perused the
documents placed on record.
The first substantial question of law is dealt with.
9. It was the burden upon the appellant to prove that the Bhumiswami right
was accorded to him. It was pleaded in the plaint that in the process of
rehabilitation, lease was granted for the suit property and as the
revenue records were mutated in favour of the appellant, therefore, he
has acquired title over the suit property, regarding which relief was
prayed for declaration of title and permanent injunction. There was no
such pleading made by the appellant in the plaint that Bhumiswami
rights were ever conferred upon him by the State Government, therefor,
the answer to the first substantial question of law is given in negative.
10. While dealing with the second substantial question of law, this fact can
not be ignored that the appellant was granted lease of the suit property,
but the issue that such lease was granted under the rehabilitation
scheme is again required to be proved. It was pleaded in the plaint that
lease was granted under rehabilitation scheme. Grant of lease to the
appellant and his possession along with the mutation entries in the
revenue records is not under dispute. The only issue for consideration
is that whether the grant of lease was made under any rehabilitation
scheme under refugee.
11. The lease deed (Ex.P-20) is in the name of father of the appellant
granted on 22.06.1982. On perusal of the terms of the lease (Ex.P-20),
it is found that lease was granted under the provisions of Land Revenue
Code, 1959 for a term of five years, which was subject to termination
after five years if not extended. Clearly the year 1982 was not the year,
in which, the migrants from East Pakistan now Bangaladesh came as
refugee in the territories of India. It was the burden of the appellant for
proving that lease was granted under the scheme of rehabilitation of the
refugees, but there is no evidence present nor any documentary
evidence was brought or is present in the record of the trial Court,
therefore, without there being such proof that the appellant was
beneficiary of any refugee rehabilitation scheme, hence allotment of
suit land in any such scheme has not been proved.
12. The status of the appellant would then be only the government lessee
as defined under Section 181 of the C.G.Land Revenue Code, 1959.
The lease granted was terminable in case not extended by the authority
granting lease. The lease in favour of the appellant has been cancelled
by order dated 09.10.1991, passed by the Additional Collector, Sarguja
in Revenue Case No. 173-A-19/89-90 by exercising of power under
Section 182 of the Land Revneue Code, 1959. Therefore, the second
substantial question of law is also answered in negative as the appellant
has failed to prove that the lease of the land was granted under any
rehabilitation scheme.
13. Hence, on this basis, after negative finding on both the substantial
question of law framed in the second appeal, this appeal is found to be
without any substance, which is dismissed accordingly.
Sd/-
(Rajendra Chandra Singh Samant)
Judge
Balram
